Spring 2014 Newsletter

Director's Welcome

When I decided to apply for and accepted a position in the Remington Center last year, I based my decision on the fact that the Center is one of the best clinical programs in the country. But how does one measure the quality of a clinical program? As an outsider, I mostly relied on the things I could access – its reputation among other clinicians around the country, its history, its values, and its curriculum design.

Now, as an insider, I think about how we measure ourselves. How do we know whether our students are learning the skills they need to be successful in their careers and the values to influence their communities in a positive way? How do we know that our clients are satisfied with our work and that we make a difference in their lives? And how do we measure our efforts to bend the criminal justice system in a positive direction?

One way to answer these questions is to hire experts to create appropriate scales and collect data. Another way is mine the anecdotal evidence by talking to lawyers, politicians, community leaders, and residents of Wisconsin. Since becoming the interim director, I’ve met dozens of people who passionately tell me about their experiences with the Remington Center.

A neighbor introduced me to her friend from out-of-town. I learned that she’s a long-time prosecutor with experience on some of the cases we read about in the New York Times. But what she wanted to tell me about was her experience as a student in LAIP, her clients at Taycheedah, her trips to the prison to play softball with the inmates. The fact that she could still remember her clients’ names and the details of their cases more than two decades later spoke volumes about the kind of immersion experience the Remington Center offers its students.

At a dinner event, I spoke to a judge. He still remembered a thorny legal issue he faced as a student in LAIP, and he told me about how he was able to solve the client’s dilemma by using some serious creativity – something he hadn’t yet been called on to do in law school. At a party, I met a recent grad who credited his work in the Public Defender Program in landing his first job right after graduation. On the golf course, I was able to connect with a woman who overheard where I worked. She reached out to thank me for the Wisconsin Innocence Project’s work on behalf of her relative.

After spending just a year in Wisconsin, these stories convince me that the Remington Center has left its mark on the lawyers, institutions and communities of this state. This newsletter is a continuation of that storytelling – stories of transformations – in our students, in our clients, and in our way of seeing the criminal justice system. I am grateful for the opportunity to be part of the transformative process, and I look forward to hearing your stories too.

Remington Center Updates

Comings and Goings

Jack Idlas started as a supervising attorney with LAIP in January, but will move on at the end of June to become a public defender in Lake County, Illinois. Jack is a 2012 UW Law School graduate who worked as a judicial clerk and court commission in Oneida County after graduating and in private practice in the Minocqua/Rhinelander areas shortly before coming to LAIP.

Margaret Maroney will fill in as a supervising attorney with the Wisconsin Innocence Project beginning in July. After graduating from UW Law School in 1978, Margaret clerked for the Wisconsin Court of Appeals and then worked for LAIP as a supervising attorney from 1979 to 1981. She then served as an Assistant State Public Defender in the Appellate Division until her "retirement" in 2009. Following this retirement, Margaret studied immigration law and began a "boutique" practice of pro bono immigration law through the Community Immigration Law Center in Madison.

Ion Meyn, who worked as a supervising attorney and then a clinical assistant professor with the Wisconsin Innocence Project for the last four years, has taken a position with the Law School as a visiting assistant professor. Ion graduated from the University of California, Hastings, in 2000, and then clerked for the Hon. Bernice Donald of the United States District Court, Western District of Tennessee. Prior to coming to the Remington Center, Ion was in private practice in California and Wisconsin.

Elyce Wos, who worked as a supervising attorney for LAIP and the Re-Entry Project since 2012, has taken a job with Legal Action Wisconsin’s Disabled Offenders’ Economic Security (DOES) Project. Prior to coming to the Remington Center, Elyce spent five years as an associate at Quarles & Brady in Madison following her graduation from the Law School where she was a student in LAIP and the Criminal Appeals Project. Prior to law school, Elyce served as a probation and parole officer in Milwaukee.

Awards

Byron Lichstein, co-director of the Wisconsin Innocence Project, was recognized by the Wisconsin Law Alumni Association as the Law School’s Clinical Teacher of the Year. In addition to his clinical teaching, Byron regularly teaches a section of Introduction to Criminal Procedure to first-year law students.

Melanie Barnes, a second-year law student and a clinical student with the Wisconsin Innocence Project, won the Public Interest Scholar Award in recognition of her academic excellence, consistent service, and dedication of a public interest career.

Laura M. Benson, a second-year law student, won the Melvin J. Friedman Memorial Scholarship for exemplary work in the Wisconsin Innocence Project.

Anita Marie Boor, a graduating law student and a clinical student with the Wisconsin Innocence Project, won the Mathys Memorial Award for outstanding coaching and service to Moot Court.

Carla Marie Carballo, a second-year law student and a clinical student with the Family Law Project, won the Children’s Justice Project Fellowship for outstanding contributions and commitment to children’s law.

Lauren L. Devine, a second-year law student and a clinical student with the Wisconsin Innocence Project and the Prosecution Project, won the Ray and Ethel Brown Award for character, leadership, and service demonstrated by first- or second-year students.

Eileen I. Dorfman, a second-year law student and a clinical student with the Oxford Federal Project and the Prosecution Project, won the Ray and Ethel Brown Award for character, leadership, and service demonstrated by first- or second-year students.

Zachary J. Gnas, a graduating law student and a clinical student with the Criminal Appeals Project, won the Catherine Manning Memorial Award for outstanding contributions to the Remington Center clinical programs.

Laura D. Graham, a second-year law student and a clinical student with the Oxford Federal Project, won the Leon Feingold Memorial Award for outstanding commitment to the Law School and greater community.

Kimberly Ann Hardtke, a graduating law student and a clinical student with LAIP and the Prosecution Project, won the Catherine Manning Memorial Award for outstanding contributions to the Remington Center clinical programs.

Mary Hoynacki, a graduating law student and clinical student with the Innocence Project and the Public Defender Project, won the Abner Brodie Award for outstanding achievement in legal study and practical application of law.

Kaitlin Kelly, a second-year law student and a clinical student with the Re-Entry Project, won the Mathys Memorial Award for Appellate Advocacy for excellence in Moot Court competitions.

Iga Fikayo Keme, a graduating law student and a clinical student with the Re-Entry Project, won the Assistant Dean James Thomas Service Award for promoting the ideals of honesty, fairness and equality.

Colin Patrick McGinn, a graduating law student and a clinical student with the Criminal Appeals Project and the Public Defender Project, won the Bruce F. Beilfuss Memorial Award for outstanding service to the Law School, and the Wisconsin Public Interest Law Foundation Jackie Macaulay Award for demonstrating exceptional commitment to public interest law.

Christopher D. Moore, a second-year law student and a clinical student with the Wisconsin Innocence Project, won the Public Interest Scholar Award in recognition of his academic excellence, consistent service, and dedication of a public interest career.

Jordan L. Rohlfing, a graduating law student and a clinical student with the Restorative Justice Project, won the Bruce F. Beilfuss Memorial Award for outstanding service to the Law School.

Britta Anne Sahlstrom, a graduating law student and a clinical student with LAIP, won the Mathys Memorial Award for Appellate Advocacy for outstanding service to the Moot Court Board.

Jaclyn Ruth Shelton, a graduating law student and a clinical student with LAIP and the Public Defender Project, won the Barbara B. Crabb Award for promoting the ideals of honesty, fairness and equality.

Rachel Elizabeth Snyder, a second-year law student and clinical student with the Restorative Justice Project, won the Prison Ministry Project Award for outstanding contributions to restorative justice.

Meredith J. Stier, a graduating law student and a clinical student with the Criminal Appeals Project, won the Bruce F. Beilfuss Memorial Award for outstanding service to the Law School.

Grant Turpin, a second-year law student and a clinical student with the Wisconsin Innocence Project, won the Mathys Memorial Award for Appellate Advocacy for excellence in Moot Court competitions.

Hannah Jo Wrobel, a second-year law student and a clinical student with the Restorative Justice Project and Prosecution Project, won the Ray and Ethel Brown Award for character, leadership, and service demonstrated by first- or second-year students.

Reflections on the Future

By Walter J. Dickey, Professor Emeritus and Faculty Director of the Remington Center

The Remington Center has been around so long that it’s easy to take it for granted.

Of course, we should not. It flourishes because devoted students, faculty, and staff work at educating law students, serving clients, and improving the criminal justice system. There are reasons the Department of Corrections, the Federal Bureau of Prisons, the Public Defender system, and more than twenty-five district attorneys’ offices continue to share the costs of the program. We are creating value not only in the academic world, but in the larger world.

These are challenging times for legal education. The incoming class is about half the size of what it was only a decade ago. This reflects, in part, the shrinking job market and salaries for new lawyers, as well as the high cost of tuition. Broader and more intense criticism of conventional legal education, marked by law firms demanding that new graduates be better prepared, also drives reform. A cynic would worry that rankings profoundly affect the size of law school classes, because smaller class sizes improve rankings. The smaller size is a mixed blessing, because higher ranking helps our students and alumni, but small class sizes may mean that qualified Wisconsin prospects are denied the opportunity to attend the UW-Madison Law School.

Proposed changes in legal education appear to incorporate the kind of training the Remington Center has offered for decades. I do worry a bit about expediency as the driver of that change. However, whatever happens to be the motivator, if healthy reform occurs, education and the profession will be better for it.

Still, I worry about the Remington Center program. I’ve always worried about it. I know what it took to get it to where we are, advancing causes that are far from popular in the world, and advancing a model of legal education not popular in some parts of the legal academic world. Ultimately, I cling to the belief that quality is what matters and our continuing to provide law students with a distinct and valuable experience will help the Remington Center continue to flourish. Our responsibility is to steward the program in a way that ensures it remains true to its values, and creates value in the educational world and outside of it.

Perhaps I should add a word about my own continuing attachment to the program. All graduates of the program know how vitally interested I have been in it. That has not changed. I did retire in 2011 with the understanding that I would continue to be Faculty Director of the Remington Center for five years. While I’m also currently serving as Deputy Director of Athletics, I make a point of being at the Law School every day.

I am now at the end of the third of those five years. Whether I have any official connection to the program after two more years, I will stay involved. I hope that my efforts to build and sustain the Remington Center for more than four decades confer on me a voice in its future. I see my role as providing continuity and morale and as lending to the Center a certain moral authority that springs from our long history, purpose, and dedication to Law in Action.

As always, we deeply value the interest and support of our many loyal graduates.

Compensation for the Wrongly Convicted: The Robert Lee Stinson Story

On April 8th, 2014, Gov. Scott Walker signed Act 206 into law. The Act, authored by Sen. Glenn Grothman (R-West Bend) and Rep. Dale Kooyenga (R-Brookfield), provides $90,000 in compensation to Robert Lee Stinson, a Milwaukee man who served 23 years in prison for a crime he didn’t commit.

Stinson’s story—and the story of Act 206—is one of tragedy and injustice, but also redemption and renewal. Stinson was convicted of the 1985 murder of a woman found in the alley behind her apartment building. She had been severely beaten and had bite marks on multiple parts of her body. The investigation and prosecution focused on trying to match the bite marks to a potential suspect. Police investigators settled on Stinson, and two expert “forensic odontologists” claimed to match his teeth to the bite marks. Although there was little other evidence and Stinson consistently maintained his innocence, the jury found him guilty based on the expert testimony that his teeth matched the marks to a certainty. Stinson’s conviction was upheld on appeal. For years, the appellate court opinion in his case stood for the proposition that bite mark identification is accepted in Wisconsin courts. The lead odontologist developed a sterling reputation, and proclaimed Stinson’s case as an example of a prototypical bite mark identification.

Twenty years later, Stinson wrote to the Wisconsin Innocence Project seeking assistance. WIP searched for physical evidence for DNA testing. At first, it appeared the physical evidence was lost, but eventually the evidence was found and tested. DNA from saliva on the victim’s pullover excluded Stinson, and matched a convicted offender named Moses Price in the national DNA databank. A new bite mark analysis, conducted by 4 nationally recognized experts using modern computer-aided methods, concluded that Stinson was definitively excluded as the person who made the bites. He was missing a tooth in a place where the perpetrator clearly had a tooth. He should have been excluded from the beginning. The State stipulated to his release, and prosecuted and convicted Price, the real perpetrator.

Stinson then began trying to pick up the pieces from the 23 years he lost. He faced enormous obstacles: no money, little access to counseling or health care, a 23-year gap in his employment history, electronic court records telling any potential employer that he had been convicted of a murder, and a world that had changed dramatically from the one he knew. He reconnected with the family and friends who were still around, and cobbled together enough support to find a stable living situation. He finished his associate’s degree and found work providing in-home care for his elderly mother.

He applied to the State Claims Board for the little compensation allowed under the law. The Claims Board eventually awarded him the maximum amount, $5,000 per year capped at a total of $25,000. The Claims Board recommended that the legislature pass a supplemental bill providing additional compensation. Stinson’s story came to the attention of three legislators, Senators Glenn Grothman (R-West Bend) and Lena Taylor (D-Milwaukee), and Representative Dale Kooyenga (R-Brookfield). Moved by the injustice of Stinson’s conviction and Stinson’s grace and persistence in the face of remarkable obstacles, the three legislators moved a bill forward to at least ensure that Stinson received $5,000 for each of the 23 years he served. The legislators held hearings and ensured unanimous passage of the bill, which Gov. Walker then signed into law, granting Stinson an additional $90,000 in compensation. Stinson’s federal lawsuit seeking additional damages is pending in the United States Court of Appeals for the 7th Circuit.

Stinson’s case highlights the inadequacies of Wisconsin’s current scheme for compensating the wrongly convicted. The amount of compensation is the lowest among states that compensate the wrongly convicted, and provides nothing for education, counseling, health insurance, or other basic necessities. The legal standard and process are overly burdensome to the wrongly convicted, people who have already suffered greatly and need immediate and readily available assistance. Apart from Stinson’s bill, a bipartisan group of legislators worked last term to advance wholesale reform to the compensation scheme. The proposed bill received hearings and garnered much support, but did not pass before the session ended. The legislators who advanced the proposal intend to continue their efforts next session.

Teaching “Professionalism” In a Clinical Setting: An Important Goal of the Remington Center

In late April, Clinical Associate Professors Adam Stevenson and Carrie Sperling led a session at the 2014 American Association of Law School’s Clinical Conference, entitled “Legal Professionalism: Can It Be Defined, or Do You Just Know It When You See It?” They presented their research on how various constituencies (clients, judges, practitioners, and clinical educators) define professionalism. Each of these groups included “honesty,” “integrity,” and “competence” in their top ten characteristics of “legal professionalism.” The next step for Profs. Stevenson and Sperling will be to address how to teach professionalism and how to evaluate students’ skills in professionalism.

Professionalism is also the topic of a session at this year’s Wisconsin State Bar Annual Meeting and Conference; that session is entitled: “Professionalism and Its Importance to Wisconsin Lawyers.” Although this topic may look modern and it may be getting a lot of attention right now, it is not a new subject. The Remington Center has focused on teaching professionalism for decades, albeit often under a word or title other than “professionalism.” The idea of instilling professionalism in law students at the Remington Center originated in the goals that motivated Frank Remington when he started the criminal law clinical program at the Law School in the 1960s.

The early LAIP program was described by UW Assistant Professor Edward Kimball as “an experimental program under the broad heading of education for professional responsibility.” Prof. Kimball wrote:

"An assumption underlying choice of an internship program in educating for professional responsibility is that personal, intensive involvement is tremendously significant for effective learning. This may be because skills are sharpened by use and because the firsthand view motivates inquisitiveness and facilitates understanding. But involvement is significant, also, because it often produces emotional commitment to the value of the endeavor."

See Kimball, Correctional Internships—A Wisconsin Experiment in Education for Professional Responsibility, in 18 Journal of Legal Education 86, 94 (1965-66).

When Walter Dickey became LAIP’s director in 1975, he articulated goals for the program that expanded on Frank Remington’s original goals of (1) motivating students to be interested in the criminal justice system, and (2) increasing capacity of lawyers to contribute to the criminal justice system by effective representation. Two of Prof. Dickey’s aims were “to better understand the role and responsibility of the lawyer” and “to develop good judgment.” In a 1978 article Prof. Dickey discussed “the qualities that lawyers need to function effectively as members of a ‘helping profession,’” and in an appendix to the article, discussed the characteristics of a clinical program necessary to achieve these qualities, using LAIP as an example of how this is being done. See Dickey, The Lawyer and the Quality of Service to the Poor and Disadvantaged Client: Legal Services to the Institutionalized, 27 DePaul L. Rev. 407 (1977-78).

The development of LAIP’s “professionalism” goals was outlined by a 1978 research paper by a UW-Madison economics student entitled “The Legal Assistance to Institutionalized Persons Program: Education for Public Service and Professional Responsibilities.” The paper examined the development of LAIP from a more academically oriented program where knowledge was developed through observation and research to a program centered on legal service to the incarcerated population. The research paper found that the training in “professionalism” was the greatest benefit of the program:

"Although overall, academic standards may be somewhat lower than they were, the students’ practical knowledge of the criminal justice system and their level of professional competence have undoubtedly been enhanced by the changing nature of the program. Students now handle routinely a great many professional tasks, including trial court argument and even appellate advocacy. They now deal directly with clients’ problems which were once referred. If the academic has suffered, the trade-off in terms of practical experience may well be worth it. . . . [T]he law students . . . also benefit from an educational experience which teaches them in an intensely personal way the consequences of their legal advice."

Meredith Ross, former director of the Remington Center, continued the conversation about “professionalism” at the Remington Center in a 2007 article. In that article, Prof. Ross discussed how the Remington Center has integrated the two primary, and divergent, approaches to clinical legal education: skills acquisition and social justice. She refers to this integration a “systems approach.” The goal of this integrated approach is a well-rounded development of the clinical student’s professional abilities and understanding of the lawyer’s role in society. See Ross, A ‘Systems’ Approach to Clinical Legal Education, 13 Clinical Law Review, 779 (2007).

The systems approach used by the Remington Center emphasizes teaching how particular systems – such as the criminal justice system, the mental health system, the juvenile justice system – work at a day-to-day operational level. This approach encompasses both skills acquisition and social justice goals. The skills include not only the staples of the attorney-client relationship, such as interviewing and counseling, but also a broader understanding of the complex interrelationships involved in how systems work. The social justice goals include not only assistance to individual clients, but also improvement of the legal and social service systems in which they are enmeshed.

Prof. Ross described the educational purpose for the clinics at the Remington Center as “developing in each student a nuanced understanding of the ‘system’ within which the student is working[;] enriching the student‘s understanding of the lawyer-client relationship; and developing the student’s professional judgment. The Center thus educates students in ‘lawyering skills’ in the broadest sense, developing in each student ‘adequate professional capacity to make a contribution’ to the improvement of the justice system, whether as a professional working within the system, as a legislator or other community leader, or simply as an informed citizen.” Prof. Ross concluded, “as with our pedagogical goals, we continue to hold true Prof. Remington’s broad vision of social justice: that a clinical program should be a ‘learning center that would expose students to the complexities of law in action, in order to ‘fit the lawyer for the task of general political and social adviser to the community.’” Id. 805.

If one were to ask most clinical students at the Remington Center today, as well as yesterday, what they gained from their clinical experience, the immediate answers would likely center around the practical, real world experience gained. But when one digs deeper in the discussion, the student often begins to talk about his or her commitments to the interests of the client, to improving imperfect systems and practices, and to a belief that good can come from ethical lawyering and behaviors. This is the honesty, integrity, and competence that clients, practitioners, and judges agree form the foundation of legal professionalism.

The Re-Entry of Wisconsin’s Rapidly Aging Prison Population: Public Health Consequences and Recommendations for Reform

By Erin E. Nagy, 3L

Because of the enormous growth in the prison populations in Wisconsin in the last several decades, as well as the enhanced sentence lengths that have been imposed during that time, large numbers of elderly and infirm persons are now being released from prison. Between 2003 and 2013, the percentage of inmates over 55 years old went from 3.55 percent of the total adult prison population to 8.29 percent of that population. Many of these inmates over 55 will be released in the coming years. When released, they will have significant health needs; yet the municipalities and counties into which they will be released are ill prepared to provide them with adequate health and social services. This paper seeks to bring this significant issue to light and to begin a dialog to address the problems.

Background

The Wisconsin state prison population is 43 percent black, almost 95 percent male, and disproportionately affected by HIV, Hepatitis C, and chronic illnesses (i.e. diabetes, asthma, and hypertension). The inmates have significantly higher rates of mental illness than the general population and are much more likely to have a history of alcohol and drug abuse (at least 70 percent of the prison population has had alcohol or drug abuse treatment needs). Just as mental illness and impairment increase in prevalence with age, older inmates have even higher rates of mental illness and/or impairment than their younger peers. Furthermore, inmates experience an “accelerated aging” process relative to their non-incarcerated peers, including earlier onsets of physical and mental maladies associated with the elderly. The physical and mental health needs of those persons being released from Wisconsin’s prisons are thus substantial. The ability of most releasees to obtain the needed care for these health needs is, unfortunately, minimal.

In prison, inmates receive constitutionally-mandated health care services. Upon release, they have little support for their continued healthcare needs. Prisons usually supply several weeks of prescription medication, but the releasee is on his own once that supply runs out. Inmates often do not understand their illnesses; this is of particular concern to aging inmates who more often suffer from diseases that require regular maintenance, such as diabetes, HIV, Alzheimer’s, dementia, heart disease, and cancer. At the time of release, medical records may not be transferred between prison and community providers. There is also no guarantee of nursing home or hospice care upon release. Not only is such care expensive, but many assisted living facilities are full and/or will reject applicants with felony convictions.

Basic care and medical needs in the community are beyond the financial reach of most releasees. Under the original provisions of the Affordable Care Act, Medicaid eligibility would have expanded to include anyone with an income below 133 percent of the federal poverty line, thus allowing many re-entering offenders to obtain health insurance. However, under the United States Supreme Court’s recent decision involving the ACA, the Medicaid expansion became optional for states. Wisconsin rejected the expansion. With this rejection, the state lost the potential public health benefits of health coverage for returning former inmates. Releasees are not usually able to obtain BadgerCare coverage as the waiting list is lengthy and most releasees do not have dependent children. Former inmates who qualify for Social Security can apply for Medicare (if over 65), but the process can be lengthy, and many returning inmates are unaware of the few services and benefits that are available to them.

The negative impacts of older former offenders on public health and on the communities to which they re-enter cannot be overstated. The health and welfare of families, friends, and communities as a whole are at risk when former offenders’ conditions – mental or physical – go undetected, untreated, or under-treated. The same is true when the releases themselves are not educated about disease or condition maintenance or self-harming behaviors.

The financial burden imposed on communities from the needs of former inmates will undoubtedly mirror the growth of the re-entry population itself. Civic organizations that already provide care for this largely indigent group are already overwhelmed. Furthermore, this burden will be disproportionately placed on the low-income urban communities with historically high crime rates as releasees usually return to the communities from which they came. These communities are already the most stretched for resources, and access to health services in these communities is limited by a paucity of medical care facilities, a lack of public transportation, and a distrust or fear of any kind of authority, especially if contact might mean re-confinement. State action to support local and community efforts to meet this increasing need for resources to assist recent releasees is imperative.

In other jurisdictions, reforms in the handling of releasees’ medical care have made rather significant differences not only in the health of former prison inmates, but also in recidivism rates. As an example, the Hampden County Correctional Center in Massachusetts established the Public Health Model of Correctional Health Care in 1992. The program assigns each soon-to-be-released inmate to a physician who provides care for the remainder of the inmate’s incarceration and then remains the inmate’s provider after release. In 2000, the recidivism rate of former Hampden County Correctional Center inmates was only 9 percent (compared to 25 percent or more for other correctional facilities in Massachusetts). Former offenders involved in the program reported increased motivation to care for their lives and health.

The reforms suggested below are not as dramatic as that being undertaken in Massachusetts; however, the relatively minor policy and community corrections reforms suggested could substantially assist in providing adequate treatment to aging individuals coming out of prison. Although the reforms may incrementally increase operating expenditures for the Department of Corrections, the failure to provide adequate continuity of care is much more costly – on an economic level and on a social level.

Recommendations

1. Expanded health screening prior to release would aid in protecting the public from infectious diseases that may otherwise go unnoticed. Institutional and individual knowledge of ailments, diseases, and/or mental disorders is imperative to the provision of adequate care in the community.

2. Enhanced discharge planning for inmates would improve the releasee’s chances of obtaining adequate medical care in the community. Prison medical personnel can discuss with each individual their health issues and the maintenance required, advise each inmate of his or her necessary prescription drugs, and provide information on obtaining those drugs – with or without insurance. A system of medical record transfer from the prison to the individual, his or her legal guardian, or his or her new medical care providers should be developed for each releasee.

3. Inmates eligible for Medicaid or Medicare upon release should receive assistance completing the necessary forms several months before their discharge dates.

4. Health care should be a part of each releasee’s case management plan. This should include information on free and low-cost community health and social services that will be available to the releasee. This plan should be given to the individual, his or her family and/or friends, the assigned parole officer, and the community health and social service providers.

5. The state should train certain parole officers for specialization with aging releasees. Some jurisdictions in Wisconsin already have specialized parole officers for sex offenders and the mentally ill.

6. Assistance mapping out offenders’ contacts is particularly important for older inmates whose social circles are likely smaller and whose ability to meet new people via jobs, activities, etc. may not be significant. Years of isolation in prison translates to years of isolation from family, friends, and acquaintances – people who may be able to assist releasees with their re-integration struggles. A wealth of psychological and sociological research shows that support from social networks improves health outcomes.

7. All inmates nearing release should be encouraged to enroll in educational and pre-release programs, and when they are released, community corrections should offer programs to assist them in directing their skills toward positive ventures – e.g. leadership training, job or community service training, hobby courses. Older releasees, often unable to work, would benefit from programs directed at establishing hobbies and/or routines that help occupy their time.

8. Perhaps most important, health access needs to be improved in Wisconsin’s poor urban communities, where high concentrations of former offenders will be released. Ideally this mean new hospitals and trauma centers, but more practically this means improved public transportation and access to social services. For older former offenders, community organizations should assist in establishing a network of information on nursing home facilities open to individuals with a felony conviction, and if demand continues to increase beyond supply, funding should be sought for facilities specifically for the purpose of housing elderly former inmates.

Conclusion

Implementing effective re-entry policies will improve public health and could improve recidivism rates. Certainly, Wisconsin’s communities could benefit greatly from a program patterned after Massachusetts’ Public Health Model, even if – to start – it focused on a the aging prison population or a specific prison such as Oakhill Correctional Institution, the state’s only minimum security men’s prison. However, the less radical recommendations set forth above will also likely make significant differences for the released population.

As individuals sentenced under harsh policies rapidly age in prison, the expense of incarcerating them will only grow. Upon release, the struggles these former offenders face in obtaining social, health, and other services dramatically affect their families, their communities, and the public health as a whole. Absent any significant local and state reform, the negative effects on Wisconsin’s urban populations from the aging prison and release populations will only magnify. It is thus imperative that state authorities institute policy changes in the criminal justice system that appropriately address the aging prison population and the coming wave of aging releasees. Failing to do so will have significant negative effects on individuals, communities, and public health.

LAIP Student Works with Immigrant Justice Clinic to Adjust a Sentence and Prevent Deportation

Although the Remington Center is no longer affiliated with the Law School’s Equal Justice Institute, in several cases over the last year, clinic students from the two centers have collaborated to better serve clients. Below is the story of the combined expertise of an LAIP student and Immigrant Justice Clinic students being employed to develop a strategy to protect an immigrant from deportation because of a misdemeanor conviction.

By Amanda Kulinski, 3L

The Immigrant Justice Clinic (IJC) was asked to assist Mr. J., a legal permanent resident in this country, who faced deportation after he was charged with and pled to a single count of misdemeanor battery with a domestic violence modifier. The charges were the result of a domestic dispute with his wife. Mr. J. had no prior criminal record or incidents of domestic violence. He was sentenced to nine months in jail, imposed and stayed, with two years of probation. With this conviction Mr. J. became deportable and the Immigration and Customs Enforcement (ICE) took him into custody and began deportation proceedings.

After reviewing Mr. J.’s case, IJC found that Mr. J. would qualify for an exception to permanent deportation if his sentence either was withheld or was for 6 months or less in jail. If his sentence was thus modified, he would be able to reapply for admission to the United States through his daughter. At this point, IJC sought LAIP’s help in writing a motion to modify Mr. J.’s sentence based on the “new factor” of his immigration consequences, which were unknown to the judge at sentencing. I was assigned the case and began writing a motion, hoping that the judge would be sympathetic to Mr. J.’s case, but knowing that sentence modifications are entirely within the discretion of the judge.

However, in speaking to Mr. J., it became clear that he had no idea until ICE took him into custody that his plea would make him deportable; his trial attorney was apparently unaware of the immigration consequences that could follow his conviction, and did not advise him of the possibility of deportation. Because a failure to inform a criminal defendant of potential immigration consequences can constitute ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), I abandoned the sentence modification route and began to explore a motion to vacate his plea under Wis. Stat. § 974.06 based on ineffective assistance of counsel.

IJC continued to represent Mr. J. in his immigration proceedings, and I started to gather facts to support the ineffectiveness of his trial counsel, including an affidavit from counsel admitting that he did not inform Mr. J. of the potential immigration consequences that could result from his guilty plea. However, additional factual research uncovered another crucial mistake made in Mr. J.’s case: during the plea colloquy, the court failed to inform Mr. J. of the specifics of the potential immigration consequences, as required under Wis. Stat. § 971.08(1)(c). Instead, the court generically informed him that his guilty plea “could have some effect” on his immigration status. Under § 971.08(2), this failure required the court to vacate Mr. J.’s conviction upon a showing that Mr. J.’s plea was likely to result in one of the immigration consequences that the court was supposed to disclose.

Like the Padilla § 974.06 motion, this issue seemed to be one that we were bound to win. This avenue, however, would not require a Machner hearing or even a showing of prejudice. Instead, the only proof needed was the plea transcript and proof that Mr. J.’s guilty plea was likely to result in deportation – the latter was easy in that deportation hearings against Mr. J. had already begun.

I prepared motions to withdraw Mr. J.’s plea on both the Padilla ineffective assistance of counsel constitutional standard and on the failure to provide the statutory immigration warnings and sent them to the ADA. The ADA agreed that the warning the judge gave was insufficient and that Mr. J. was entitled to withdraw his plea. The ADA stipulated to Mr. J.’s § 971.08 motion and agreed to a hearing. We filed both motions and negotiated a new plea to disorderly conduct with an agreement to a time served disposition. Disorderly conduct, without a specific component of violence, does not have the same immigration consequences as battery.

At the hearing, the judge granted the motion to withdraw Mr. J.’s plea based on the stipulation of the parties and sentenced him to time served. At the time of writing this, IJC is in the process of terminating the immigration proceedings; Mr. J. should be able to remain in the country with his family, including his newborn granddaughter, as a result of the collaborative efforts of IJC and LAIP.

This case taught me that there are often many different avenues to achieve the same goal. It also highlighted the benefits of collaboration and the need for specialized knowledge in technical areas like immigration law, as well as criminal law. If Mr. J. had come to the Remington Center directly, we would not necessarily have known how his sentence needed to be modified in order to avoid deportation and how it needed to be re-pled. Without the help of LAIP, IJC would have had great difficulty navigating the criminal justice system. But through our joint efforts and collaborative knowledge, we were able to achieve a positive result for Mr. J. and his family. I also got my first “victory” as an attorney (or almost attorney).

LAIP Student Prevails in a “Compassionate Release” Case

In 2001 the Wisconsin legislature passed its first law allowing for prisoner release for extraordinary health reasons. The law has been revised several times since 2001, but rarely employed. The present “compassionate release” law permits release for those with an “extraordinary health condition,” which is defined as “a condition afflicting a person such as advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution.” Wis. Stat. § 302.113(9g). Below is one LAIP student’s successful journey through twists and turns involved in trying to convince the authorities that an inmate should receive a compassionate release.

By Katherine Domina, 3L

Mr. A. was my very first LAIP client. He used a Wisconsin Innocence Project application to write to us, saying, “I am not innocent but I do have terminal cancer….” In preparing for my first interview with Mr. A., I had a rough idea of Mr. A.’s crimes from CCAP—a string of armed robberies—and had looked up his picture on Wisconsin’s Inmate Locator website. The man who answered my call of “…Mr. A.?” looked nothing like the bigger gentleman in the picture, whose wire-rimmed glasses looked small on his round face. The man before me was shrunken, sitting in a wheelchair. His head was shaved and he had a scar across the top of his head running ear to ear.

Suddenly, all of my prepared questions did not seem to be enough. I introduced myself and tried to decide where to begin. Mr. A. sensed my hesitation and started the conversation. He told me he was suffering from terminal brain cancer. The scar on his head was a result of three craniotomies. He was diagnosed shortly after being incarcerated for the drug-related armed robberies. The cancerous tumor was sitting right on his motor strip, meaning it was impossible to completely remove during surgery. A recent round of radiation currently held the progression of the tumor at bay; but that he would succumb to the cancer was clear. It was not a question of if, but when.

Mr. A.’s diagnosis had a profound effect on his quality of life in the correctional institution. He had constant, debilitating headaches. He was extremely sensitive to light and sound. Although against institution policy, every time I saw him he had bright orange earplugs to drown out the noisy environment. He made 3-5 painful trips to the infirmary every day for medication and spent the rest of his day in his cell with a t-shirt over his eyes to block out light and earphones to block the noise.

Mr. A. made frequent trips to UW Hospital in Madison for oncology appointments. For these trips he was shackled, put in the back of a transport van, and often transported with other inmates. Because the van often had to leave early, Mr. A. was unable to get his day’s supply of medications before leaving. He thus suffered through a day of noise without medication. He became so desperate to avoid this pain that he began refusing trips to his oncologist.

After listening to Mr. A.’s medical and institutional concerns, I started asking questions. I found out that his previous attorney filed an Extraordinary Health Condition (EHC) petition that had been denied. Armed with a jumble of information, feeling drained, yet excited, I set off to research what I could do for Mr. A.

After reviewing the law, I started to put together a new EHC petition for Mr. A. The statute provides that petitions are to be reviewed by the Program Review Committee (PRC) at the institution. If the PRC finds that it is in the public interest to modify the inmate’s sentence, the PRC forwards the petition to the sentencing court for a hearing. The sentencing court then determines whether the greater weight of the credible evidence shows that early release would serve the public interest. Luckily, if an EHC petition is denied, the inmate can bring another one after a year has passed.

Mr. A. had a wonderful oncologist at UW Health who walked me through the intricacies of his disease, his life expectancy, and his day-to-day hardships. The physician provided us with a detailed affidavit. One problem we ran into was trying to nail down life expectancy. Mr. A.’s oncologist had seen patients with this type of brain tumor live for 10 years and others pass away after 6 months. I also needed to get an affidavit from a physician within the correctional facility, and found a cooperative and sympathetic medical staff.

I worked closely with Mr. A.’s social worker at the institution to get Mr. A.’s petition packet ready to present to the PRC. The social worker provided insight into Mr. A.’s day-to-day life and the institutional hardships with which he struggled. She provided me with his first EHC petition and the written denial. I noticed the denial focused on the lack of a release plan, which is something we would need to work on the second time around.

I spoke with many people as I tried to put together a release plan. A significant concern was how Mr. A.’s medical needs would be funded, which is where DOES came in. I also spoke extensively with Mr. A.’s mother, who was very supportive and willing to take on the bulk of his care upon release. We looked into programming he could attend in the community with the understanding that with his diagnosis, he would not be able to do very much upon release.

After turning in Mr. A.’s EHC packet, complete with a release plan, two affidavits, and a detailed supplemental letter that I put together, a PRC hearing was scheduled at the institution. The members of the PRC first spoke to Mr. A., asking him various questions about his condition, his life at the institution, and his crimes. Mr. A. did not become emotional during the hearing until he spoke about his crimes and about how his current diagnosis had really shifted his perspective.

I gave some closing remarks and we were sent out of the room. The PRC rendered its decision that day, finding that it was in the public’s interest that Mr. A.’s sentence be modified and forwarding its determination to the sentencing court. With the PRC decision, DOES could help Mr. A. with his Social Security applications. He was approved for Social Security less than two weeks later.

Mary Prosser, my supervising attorney, and I turned our attention to the pending hearing in front of the circuit court. I was newly authorized to appear in court. We decided to call four witnesses: Mr. A., his oncologist, his mother, and his social worker.

At the hearing, Mr. A’s family filled an entire side of the courtroom. I was extremely nervous and the way I had envisioned the hearing going in my head was not at all how it happened. I had trouble getting into a rhythm with my questions, was relying too much on notes, and did not feel I was effectively telling Mr. A.’s story. Prof. Prosser was there to lift me up and change the direction of the narrative. She salvaged the end of the hearing, but we both left with the feeling that we were not going to win this one. The judge took the petition under advisement. I was disappointed about my performance and had a hard time being optimistic when mingling with Mr. A.’s family after the hearing.

Five days later, I received an email congratulating Prof. Prosser and me on prevailing. Mr. A.’s petition had been granted. We received additional emails from his family members, his oncologist, and even the attorney who represented him in his first EHC petition. Several days later, I received a thank you note from Mr. A. The most special thing about it? The return address was not a correctional institution and there was not an inmate number after his name.

The Restorative Justice Project: Two Students' Experiences

As set forth in the Fall 2013 Remington Center Newsletter, the scope of the Restorative Justice Project has been broadened considerably from its base of victim-offender dialog. Below are essays from two students who were part of the revamped program’s inaugural year.

Student finds Restorative Justice Principles Infiltrating into Her Thinking about the Law in a Variety of Settings

By Hannah Wrobel, 3L

I started orientation for the Restorative Justice Project on a Tuesday. On Friday, I went to prison. I had gone through my client's file more times that I could count, but quite frankly, upon entering the prison, I still had no idea what I was doing. I remember thinking to myself, "I'm a good listener and am easy to talk to. I'll use that as my crutch if I get stuck on a question." I soon learned that listening, conversing, and laughing with those who I work with in prison wasn't just a crutch - it was the foundation of all of my work with them.

The Restorative Justice Project is unique in comparison to the other Remington Center programs. Rather than working solely with inmates, we work both with offenders and their victim-survivors. Our meetings with offenders and victims do not revolve around answering legal questions or filing motions with the court. Instead, they revolve around getting to know the offenders and the victim/survivors as people and helping them through their unique healing processes. I soon learned that this was my dream job.

During the summer, I was immersed in the field of restorative justice. I loved it. I loved watching victims progress in their healing process and take back the power over their own lives as survivors. I loved watching offenders take responsibility for their actions and make strides to repair the harm that they caused. I loved exploring how restorative justice could be used in other contexts, including schools, communities, and families.

Once the school year started, we had to cut down on work hours in order to make room for classes and extra-curriculars. However, since my mind had been oriented to think about almost everything in terms of restorative practices, that mindset seeped into my coursework and organizational involvement as well. During the fall, I took a course in International Commercial Arbitration. Throughout the course, I would compare arbitration to restorative justice conferencing and think about how the two could borrow concepts from each other. In the spring, I took a course on the role of the prosecutor and would think about how restorative practices could be utilized in a District Attorney's office.

My time with the Restorative Justice Project taught me a lot. First and foremost, it has taught me that all human beings should be treated with dignity and respect. Each and every person in the world has their own unique story that involves triumph and failure. I wish that everybody had the opportunity to meet with a crime victim and learn about their struggles and healing processes. A crime victim is much more than a piece of evidence. They are a person, going through their own unique journey. I was honored to be let in to their lives and have the opportunity to go through that journey with them. I also wish that everybody had the opportunity to visit a prison and meet with an inmate. Inmates should not be defined by their worst mistake. Rather, they should be defined by how they are turning their lives around and working to repair the harm caused by their mistake.

I am so grateful for this experience.

Student Takes Restorative Justice Principles into Two Community Projects

By Rachel Snyder, 3L

When I decided to apply for the Restorative Justice Project, I wanted three things: 1) to explore alternative dispute resolution (ADR); 2) to find out whether I could handle family law; and 3) to earn a significant number of credits so that I could graduate early. I did experience ADR; I found out that family law is not for me; and I did earn enough credits to graduate early. The Restorative Justice Project, however, gave me more unique experiences than I could ever have hoped.

Most of my summer as a clinical student in the Restorative Justice Project in 2013 was spent working with those incarcerated in Wisconsin’s prisons. I even participated in a three-day restorative justice workshop with inmates, sharing laughter and tears on a human level with inmates. During the school year, I got involved with two community-oriented restorative justice programs.

The first was a program in the Madison schools that is intended to interrupt what has become known as the school-to-prison pipeline. Through the Madison YWCA, law students were taught to be “circle keepers” at several middle and high schools. Within a circle, a student is held accountable by his or her peers, while being allowed to explain why he or she behaved in a particular way. All people impacted by the actions of the student in question are given an opportunity to share how they were affected and what they needed to feel restored. Instead of suspension or expulsion, the students craft creative solutions/consequences. As with the inmate restorative justice group, I was impressed by the simple humanity that united those dealing with harms caused by the action of one of the group, and was encouraged that such a simple concept can be used to benefit children.

The second community restorative justice program I took part in was with ARC Community Services. For ARC, I designed and facilitated a six week restorative justice program for women in a transitional living facility. Every Friday evening for six weeks, I met seven women in the basement of their house to discuss restorative justice. We laughed together, and we cried together. We bonded over our mutual experiences, and I was humbled and amazed to learn about their past experiences with abuse and other forms of personal victimization. What I saw in that circle each week, were women who had been beaten down by life experiences and harm caused by others. They had responded by continuing the cycle of harm in various ways, as people tend to do, and ended up in prison. But I also saw potential and strength. During our sessions, these women began to think differently about themselves and their situations. They started to recognize the link between their personal actions and the harm caused to others. They expressed a desire to end the cycle of harm.

The ARC program ended with a service project that allowed the women to give something back to the community. I brought snacks, project supplies, and another law student. We were both welcomed as members of the group rather than held at arm's length as outside instructors. The frigid temperatures kept us inside, but we worked together, law students and house residents, to make fleece blankets for children in conjunction with Project Linus; this was especially meaningful because many of the women had children of their own. The women were happy to use their creative skills for something positive. They were saddened that the program had come to an end, but glad it ended on a positive note.

I left the Restorative Justice Project with a changed perspective of crime, its impact, and why it is committed in the first place. I have more respect for the enduring humanity in everyone, even in those who have been convicted by the criminal justice system. This experience saved my sanity by reminding me that the practice of law is human at its core. All of the reading, writing, and stress of law school is important if used to help others. I am eternally grateful for my varied experiences, and I can only hope that future Restorative Justice Project student interns are as positively affected.